News

Kelly Fergusson resigns as Menlo Park mayor; revote delayed

Council cancels meeting set for today

Council member Kelly Fergusson has resigned as the mayor of Menlo Park as a consequence of Brown Act violations she committed by meeting one-on-one with at least three council members to discuss her desire for the position.

The council now plans to re-vote on Tuesday.

In a statement issued today, Ms. Fergusson wrote, "My resignation is a symbol of the respect I have for the Brown Act, and of my intention to be completely mindful and aware in the future and to act in full compliance with the law as I always have in the past."

She said she will not be a candidate for mayor during the re-vote.

As The Almanac first reported, the councilwoman held private discussions with Rich Cline, Peter Ohtaki, and outgoing councilman Heyward Robinson earlier this week. All three said they were unaware she had spoken with anyone else.

City Attorney Bill McClure said Ms. Fergusson may also have asked an intermediary to lobby Kirsten Keith, who was chosen as vice mayor.

At his request the council postponed a special meeting on Friday afternoon called 24 hours earlier to re-vote on mayor and vice mayor, and will instead discuss the matter on Dec. 14 at its regular Tuesday night meeting.

The postponement came in the wake of outrage from local government watchdogs over the timing of the meeting. According to the city clerk's office, four of the five council members requested the Friday meeting.

Open government advocate Peter Carpenter urged the city attorney to properly notice the meeting, after realizing the notice didn't indicate a public comment period at the meeting.

The advocate also sent a letter earlier this week asking Mr. McClure to correct the Brown Act violations.

"Specific reference to the public's right to comment on the item was missing from the notice as it turns out—I had thought there was boilerplate language regarding public comment at the bottom of the notice—but it turns out that language was not there," said Mr. McClure when asked about the reason for the postponement, describing it as a "technical defect" in the city's announcement of the special meeting.

Ms. Fergusson, who has served on the dais for six years and once before as mayor, said she intends to remain on the council.

She was elected mayor again only four days ago by the council in a 3-2 vote, with Andy Cohen and Peter Ohtaki dissenting.

Both the position of vice mayor and mayor pro tem will be filled by Ms. Keith until the re-vote, according to the city attorney.

The Almanac will update this story as more information becomes available.

Posted by Sally
a resident of Menlo Park: The Willows
on Dec 10, 2010 at 12:26 pm

Maybe we should also be talking about new member Ohtaki violating the Brown Act as well. It certainly appears that he and Cohen have had discussions prior to the meeting on the 7th. If that is the case he should get the same treatment as Fergusson as that would mean that he spoke to Fergusson and Cohen on the agenda item.

I really wonder who is stirring all of this up......Could it be Ohtaki because he is upset with not being chosen as vice mayor? Certainly makes me concerned"

Kelly has shown that when faced with the opportunity for personal gain, even for something her most staunch supporters argue is as trivial as a honorary title that she has already held before, she could not control her actions, and broke the law. To say that she somehow misunderstood the Brown Act is just furthering the transgression, with another lie. The Brown Act is mentioned in almost every conversation anyone has at City Hall. Kelly absolutely knew she was breaking the law, or her competency level after six years in office should seriously be questioned.

But perhaps what is most disturbing is that Kelly had a real motive to break the law, greater than a honorary title. The underlying issue, is that what was at stake for Kelly was not just an honorary title. Kelly broke the law and BECAME the City's chief elected official in a year that there is a strong possibility the city will be engaged in litigation in defense of a ballot measure she and her union backers opposed. To be elected Mayor both rehabilitates her image from the measure's defeat, and gives her the opportunity to influence administratively the measure's future. There was a very strong personal and political motive for Kelly to be mayor this year. And Kelly allowed the election to occur and proceed even when reminded of the Brown Act, prior to the vote. She knew she had broken the law, but continued with her plan. Only later when threatened with legal action, did she retreat.

Whether you are a Democrat, or Republican, a Residentialist, or a Development supporter,

makes no difference.

Kelly has broken the public trust, and is compounding the issue by continuing to lie that she somehow misunderstood the law. It is sad, but she no longer deserves a vote representing the interests of the citizens of Menlo Park, because we won't know if the vote represents her own personal motives, or ours. She should resign from office.

Posted by concerned
a resident of Menlo Park: Downtown
on Dec 10, 2010 at 12:29 pm

Kelly didn't resign because of her respect for the Brown Act, she resigned because she got caught ! If she had respect for the Brown Act, she would never have attempted to to solicit votes, she has been a member of council for way too long, not to know the law.

Maybe they should all resign ! Let's start over with new people who are willing to work for the residents and not those who are politically driven by blind ambition. Cohn & Ohtaki should resign as well, at least keep Cline around, he is a pretty decent chap.

I would not be too quick to disparage Ohtaki. I think Menlo Park is fortunate to have a person of his caliber and background on the Council. Does it matter that he was not a member of the Council until nearly the end of the meeting?

Sally,
There is nothing wrong with Peter Ohtaki meeting with Andy Cohen. That's not only legal, but it's reasonable too. The problem is if Peter speaks with Andy, then Rich, or Kirsten and Kelly or a combination of the city council (whether alltogether, or in a serial fashion) without involving the public. And of course, if Peter spoke with Kelly too, it makes a difference who initiated the call...and whether he, or others, were aware that this was broader than a 1-1 discussion. It seems complicated, but it's not.

The council should hire an Ethics consultant for the study, have them spend $300,000, work on it for 3 years and come up with a 300 page document which would outline the actions that the Council could take. The council would then study it for 6 months and then come to a conclusioon. Isn't this what is usually done?

Peter, until I see any evidence of you contributing to the greater good of our city without an eye toward politics (have you investigated your buddy Peter Ohtaki for Brown Act violations with the same vigor?), I cannot take your comments as anything but self-motivated politics. You cuddled up to Lee and Mickie on election night showing your truest political colors and you claim to be this objective overseer?

Are you?

Yes you know the Brown Act, as your uncle clearly was a visionary.

But finger wagging at only the folks you disagree with is insincere. I have yet to see you take on your own. Will you do it? I think there is a good chance Ohtaki violated the Brown Act during all this chaos. I think he was part of the bundling of votes and I think you are giving him a pass because Kelly was so obviously lame.

I remember you going after Pat Burt and Cline and Jerry Carlsen when they met with High Speed Rail officials about a trip along the train tracks. You made it seem like they had committed fraud and I was pretty upset. In the end, they met with an official to talk about the route they would travel and they were not representing the regional body the peninsula rail coalition.

But you attacked with vigor. When I asked around I found out you are a political opponent of Carlsen and Burt. I am not sure about Cline, but how can we trust you if you only self select your violations?

Posted by Sally
a resident of Menlo Park: The Willows
on Dec 10, 2010 at 1:04 pm

It doesn't matter if Ohtaki initiated the call to Cohen or not, if he talked to Fergusson and Cohen on the same agenda item he is in violation as that is 3 members of the council. ohtaki and Keith were subject t to the Brow. act as soon as they were shown to be winners.

Central Menlo show me where in the Brown Act where it states who initiated the contact makes the difference. If Ohtaki had spoken to Fergusson then he should not have spoken to Cohen about the same agenda item"

Truth, I agree with you. What I also find interesting is the recent article in The Almanac "Carpenter replaces Ohtaki on Fire Board" and the fact that "Mr Kennedy previously served on the (fire) board but his service was plagued by reports of unethical behavior. He was censured three times and stripped of his badge." I wonder if the "unethical behavior" ever rose to the level of a criminal act and if Carpenter ever
wrote a letter to this district attorney about his colleague. Guess we
will never know since the rebukes would have happened in closed session
and there was never any reporting of it in any of the closed session
minutes. So much for the Brown Act and a level playing field.

Sally,
I think you understand, that is good. Just in case, I'll say it this way. If Harry calls Dick before Tom calls Dick and then Tom calls Harry, does that mean that Dick has has violated the Brown act? No. If Harry tells Tom he's not interested in talking, that's okay. Of course, if Harry then calls Joe about the same subject, by golly that's a problem. Who calls who? that matters. Whether there was intent to have a serial conversation matters too. In this case, I sure don't know what happened. Maybe Peter called Andy. No problem. And then maybe Kelly called Peter. That's a problem, but only if that is after Kelly called Kirsten. Maybe Peter is the hero here, by pointing out that it looked like there was a Brown Act violation. But I don't know. I do think we know that Kelly violated this by the email trail. I'm not defending Peter, or anyone, I'm just sayin', that's all. This might seem complex, but it's not.

Peter said "It is a sad state of affairs when the City Attorney describes omitting the public's right to speak as a "technical defect".
Peter there was no omission - "public comment" itemized on the agenda is for public comment for issues not on the agenda. The agendas never state that there is public comment on each agenda item. The reason - public comment on an agenda item is always part and parcel of each agenda item.
Thus since the voting for mayor issue is/was on the Fri agenda there was no need to make public comment and independent agenda item
You did a great job pointing out the Brown Act violation by Kelley, but it's time to give it a break before you bust your buttons.

Central Menlo -
In trying to show that this violation of the Brown Act was not complex I think you succeeded in demonstrating just the opposite. And in the process, you inadvertently show how silly it is that we're so intent on limiting communication between council members. In my mind, communication among colleagues is a good thing - it helps lead to understanding and resolution. In any case, if we insist that the only communication between members can occur at public meetings, I don't want to hear any more complaints when the meetings run until the wee hours.
The question that no one seems to want to discuss is: do we really think that similar "behind the scenes conversations" weren't likely also held by every other potential Mayor going back to Charles Burgess?
I'd say you're naive to think that other mayoral candidates didn't take such informal polls of their colleagues in almost every prior election - and that's really all Kelly is guilty of here. Shall we resurrect those previous violations of the Brown Act and invalidate their mayorships just to be consistent?
Or is this particular minor violation being jumped on by folks with a political motive? Say, folks who don't like Kelly and are looking for any excuse to sabotage her?
I notice a lot of the most strident voices condemning Kelly's action are notably silent when the same charge is brought up against Peter Ohtaki.

Posted by lookin on
a resident of Menlo Park: Menlo Oaks
on Dec 10, 2010 at 2:17 pm

Kelly does not need to resign from council, nor in my mind should she.

However, her letter of resignation leaves much to be desired.

She should recuse herself from the discussion and voting on who will be Mayor and vice-Mayor. She has corrupted the process; she should not be allowed to participate further in this process. This should be demanded.

Her resignation letter shows she still expects to play a strong roll in this process. Note her last statement in her letter of resignation:

"It is my recommendation that because of the unusual circumstances associated with this year's mayoral selection process that the council's policy of mayoral selection be suspended."

Council should demand she not participate and pay no heed to her recommendation here. It appears she is trying to keep Andy Cohen from becoming Mayor, since under the policy, as Bill McClure explained, Andy should be appointed mayor, now that Kelly has been removed from seeking the position.

I don't know if a motion to censure Fergusson is possible in a general law city like Menlo Park. It would seem4M291 appropriate punishment for what she did.

Posted by lookin on
a resident of Menlo Park: Menlo Oaks
on Dec 10, 2010 at 2:20 pm

I have no idea who "Steve" is, but there has been absolutely nothing posted or inferred by McClure or anyone on authority, that would indicate the Ohtaki has anything to do with his being involved in any violation. BTW, I am not an Ohtaki fan; I didn't vote for him, but don't accuse an innocent party.

Posted by POGO
a resident of Woodside: other
on Dec 10, 2010 at 2:31 pm

Bob - you are wrong. Not every agenda item REQUIRES a public comment. The council can choose to hear public comment but may not be required to do so (depending upon the item). But every official meeting REQUIRES that some time, usually at the beginning or end of a meeting (or both) be devoted solely to public comment to discuss any items of concern to the public. The city attorney did not provide for this and his agenda was not compliant with law - and the delayed meeting would appear to confirm this.

Sally - judging from the admissions in the article, Mr. Ohtaki did not violate the Brown Act any more than Mr. Cline or Ms. Keith did. They did not convene "serial meetings." On the other hand, Ms. Fergusson DID convene serial meetings about the same topic. She admitted it and, given her experience in elected office, it would be difficult to believe that she didn't know this was illegal.

To be clear, any Council Member can discuss any issue with another Council Member in public or in private. What they cannot do is convene a quorum privately (either in a group, serially by a single member or by "daisy chain" where one person agrees to call the next person) to conduct official business or agree on an arrangement.

Those are all prohibited by the Brown Act. Regardless of your political persuasion, you have a right to see how your elected officials make decisions.

Posted by WhoRUpeople
a resident of another community
on Dec 10, 2010 at 2:40 pm

So i have a few questions for the Almanac since the article wasn't very clearly written nor fully investigated; but if any one else knows the answers that is fine too.

Kelly resigned as mayor--isn't that kinda like saying you can't fire me cause I quit you? The City Attorney already has asked the Council to declare the election null and void. By resigning, does that mean she is not eligible for renomination (the most logical question I would have asked if I was writing the article)? Or, does she intend not to accept a nomination if one is made (the 2nd most obvious question I would have asked)? Or, if renominated she would gladly and legally serve (the 3rd most obvious question)? Since there is no evidence or allegation of Ms. Kieth doing any thing wrong, why does her election to vice mayor need to be voided? If it does not/should not need to be voided, and now that Kelly has resigned, isn't the vice mayor (Ms Kieth) automatically mayor? If not, why not?

Pogo - right and wrong -
from the Brown Act 54954.3(a)
Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.
So yes the notice for the special meeting required mention of public comment but only on that specific special meeting agenda item - not "to discuss any items of concern to the public."

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 10, 2010 at 3:14 pm

Truth and Thomas - If you had done any competent research or asked me then you would have found:
1 - I DO have a political agenda - it is called GOOD GOVERNMENT with particular emphasis on compliance with the Brown Act which I consider to be the cornerstone of citizen participation and control of government,
2 - I have neither political friends or political enemies
3 - Pat Burt and I have been friends for years
4 - Jerry Carlson and I have been friends for years
5 - I was one of Fergusson's first supporters when she first ran for the city council
6 - As President of the Fire Board I was the individual who filed suit against my fellow board member for his inappropriate behavior and to have the court remove his official credentials - which it did.

Is there any other garbage that you would like to serve up to attack the messenger rather than dealing with the very real violations of the laws that have taken place?

Joanna - If everyone and everything that is "an embarrassment" were to resign or depart there would be very little left of Menlo Park.
Now if anyone who violated their public trust, broke the laws pertaining to their position, or were just too incompetent to properly perform their duties were to resign - then that might make sense.

As the story states, Kelly Fergusson said she will not be a candidate for mayor during the re-vote. She will not accept a nomination.

Kirsten Keith, as the story also states, is now mayor pro tem and vice mayor. With the intent to declare the election null and void, she can't automatically become mayor since she became vice mayor during that election.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 10, 2010 at 3:40 pm

Fergusson states:""My resignation is a symbol of the respect I have for the Brown Act, and of my intention to be completely mindful and aware in the future and to act in full compliance with the law as I always have in the past." even though she clearly broke the law.

The City Attorney says that the failure to permit public comment at a noticed meeting was a "technical defect' even though the law requires notice of the opportunity for public comment in any noticed meeting.

Have the Menlo Park officials banned from their lexicon such simple statements as:
- I was wrong
- I made a mistake
- I broke the law??

Posted by Interested
a resident of another community
on Dec 10, 2010 at 3:46 pm

Ms. Brundage......You must be reading a different "story". Nowhere in your article is the statements you assign to Ms. Fergusson

"As the story states, Kelly Fergusson said she will not be a candidate for mayor during the re-vote. She will not accept a nomination." mentioned.

"Council member Kelly Fergusson has resigned as the mayor of Menlo Park as a consequence of Brown Act violations she committed by meeting one-on-one with at least three council members to discuss her desire for the position. The council now plans to re-vote on Tuesday.

In a statement issued today, Ms. Fergusson wrote, "My resignation is a symbol of the respect I have for the Brown Act, and of my intention to be completely mindful and aware in the future and to act in full compliance with the law as I always have in the past."

As The Almanac first reported, the councilwoman held private discussions with Rich Cline, Peter Ohtaki, and outgoing councilman Heyward Robinson earlier this week. All three said they were unaware she had spoken with anyone else.

City Attorney Bill McClure said Ms. Fergusson may also have asked an intermediary to lobby Kirsten Keith, who was chosen as vice mayor.

At his request the council postponed a special meeting on Friday afternoon called 24 hours earlier to re-vote on mayor and vice mayor, and will instead discuss the matter on Dec. 14 at its regular Tuesday night meeting.

The postponement came in the wake of outrage from local government watchdogs over the timing of the meeting. According to the city clerk's office, four of the five council members requested the Friday meeting.

Open government advocate Peter Carpenter urged the city attorney to properly notice the meeting, after realizing the notice didn't indicate a public comment period at the meeting.

The advocate also sent a letter earlier this week asking Mr. McClure to correct the Brown Act violations.

"Specific reference to the public's right to comment on the item was missing from the notice as it turns outI had thought there was boilerplate language regarding public comment at the bottom of the noticebut it turns out that language was not there," said Mr. McClure when asked about the reason for the postponement, describing it as a "technical defect" in the city's announcement of the special meeting.

Ms. Fergusson, who has served on the dais for six years and once before as mayor, said she intends to remain on the council.

She was elected mayor again only four days ago by the council in a 3-2 vote, with Andy Cohen and Peter Ohtaki dissenting.

Both the position of vice mayor and mayor pro tem will be filled by Ms. Keith until the re-vote, according to the city attorney.

The Almanac will update this story as more information becomes available.

This gets more nutty by the minute, in addition to a violation of the law, an Almanac reporter now states that comments are in the story that are clearly not......

As the story states, Kelly Fergusson said she will not be a candidate for mayor during the re-vote. She will not accept a nomination.

Kirsten Keith, as the story also states, is now mayor pro tem and vice mayor. With the intent to declare the election null and void, she can't automatically become mayor since she became vice mayor during that election.

I want to make this clear.

According to Sandy Brunnage, Almanac Staff writer in her response to WhoRUpeople.....

Kelly Fergusson has stated she will not accept the nomination for Mayor even if nominated.

My apologies; I lost a sentence from an earlier draft without realizing it. The information about Ms. Fergusson not being a candidate for mayor during the re-vote has been put back where it belongs. The information about Ms. Keith was already in the story.

Posted by Perplexed
a resident of Menlo Park: Downtown
on Dec 10, 2010 at 3:58 pm

Decisions, decisions.....
Do I go to the Tues council meeting for my evening entertainment or do I stay home and watch the new episode of NCIS.
Tough choice - they're both about law breakers with a large dollop of humor thrown in.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 10, 2010 at 5:21 pm

A rotational policy established by a previous council is not binding on the current council because it was a policy statement and it was not adopted as an ordinance. The current council may wish to adopt that policy or not - that is their choice and that is why why we have elections. What good is it to elect new people if they are bound by the previous councils policies?

Looks like Kelly got caught and resigned. Peter Carpenter does around turn on the fire board. Peter Ohraki, a former Fire Board Member and anti-union supporter rides high in the saddle for now. I hope Peter Ohtaki is ready for long nights and sleepless days for 4 years. You're (Peter O) in the big time now. Get ready to fight for us citizens and be ready for those other 3 council members "to take your lunch money". Don't count on Andy Cohen, I think he does know where he is most of the time. Good Luck Friend, Peter O.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 10, 2010 at 5:40 pm

Dear Mr. Carpenter,

Thank you for bringing this matter to our attention. Please be assured that we are continuing to monitor these proceedings and will be making a determination as to what action, if any, may be appropriate when a full review of the facts and circumstances surrounding these issues has been completed.

Sincerely,

Albert A. Serrato
Deputy District Attorney

>>> "Peter Carpenter" <peterfcarpenter@gmail.com> 12/9/2010 1:20 PM >>>
Dear Mr. Serrato,
Ms. Ferguson has acknowledged her violation of the Brown Act and I believe that this in far from the first time that she has violated the Brown Act.

I therefore request that the District Attorney, under 54959. Violation of Act; Criminal penalty, bring criminal charges against her to both appropriately punish her for this violation and to establish judicial oversight over her further actions as an elected official.

If council is going to follow the policy for the mayoral selection, Andy is definitely the only choice that is left.

1. Fergusson eliminated because of the violation and her stating she will not become mayor.

2. Mayor position is to be rotated (eliminates Cline)

3. The choice of a mayor shall limited to those who have served at least one year on council. (eliminates both Ohtaki and Keith)

Andy Cohen is the only choice left.

Now you see the complete reversal of Kelly's position, which she pleaded on Tuesday. On Tuesday she pleaded the policy must be followed.

Here is what Kelly said at council on Tuesday:

(beginning of her words)

"Just regarding the protocol, I think it is an important protocol,19 of 20 of our Cities I believe in San Mateo County follow Mayoral rotation, like we do, although every city has a different variation on it

But even on councils where there is strong ideological divisions or personality clashes, they still follow it out of a knowledge of a need for continuity and stability. A lot of eyes are on us. Are we going to be know throughout the county as fair and balanced or we going to be the council they say "What is the deal with you guys"

(end of her words)

In her resignation letter she now states she recommends the policy not be followed. What she is saying here is, Do not choose Andy as Mayor.

At a very minimum, Kelly must recuse herself from any further involvement with the choice this year of Mayor or vice-Mayor, including discussion and casting any votes.

If she won't do this voluntarily, then a way must be found to force this.

Peter -
A criminal penalty for making 3 phone calls to colleagues?! That is a bit over the top. As if the rewards for serving on the council ("long nights and sleepless days" as Satisfied pointed out)aren't already onerous enough, this kind of abuse should discourage even more potential candidates from seeking this office.
Thankfully in the 56 years history of the Brown Act, no one has yet been found to be in criminal violation of this law.
I'd say Kelly's loss of the mayorship, not to mention the public humiliation she's already experienced, has been punishment enough.

The wanton disregard Kelly has for the law, and the lack of respect she has for the citizens of Menlo Park make her an undesireable Mayor and Councilmember.

As anyone who has watched this council interact for the last 4 years knows. This is HARDLY her first violation. In fact Mr. McClure took the whole council aside at least twice this year to remind them of their obligations under the Brown Act.

Kelly is a LIFETIME politician (6 years on MP Council,4 years on MP Planning) who has been tutored and guided by the San Mateo Democratic Central Committee. If She can't remember the simple Brown Act rules, she is undeserving of ANY office in this city, county or state.

She broke the law and the District Attorney needs to investigate this and prosecute her if she violated the law.

Putting Mr. McClure in the position of legal advisor to the Council and investigator is unfair to Mr. McClure who has done an outstanding job in serving Menlo Park.

Posted by Outside Looking In
a resident of Menlo Park: other
on Dec 10, 2010 at 6:05 pm

Peter Carpenter: Thank you for posting your correspondence with the District Attorney's office!

Steve: Yes, a "criminal penalty" for having an illegal closed-door meeting. The Brown Act is very explicit about this. What don't you understand here?!? Breaking the law is not OK-- even a two-year knows this!

Kelly should resign, and the Council should appoint John Boyle to complete the remainder of her term. Either that or Kelly should be recalled, and the Council should appoint John Boyle.

Kelly does not belong in public office. She's technically a criminal, having violated the Brown Act.

Posted by Outside Looking In
a resident of Menlo Park: other
on Dec 10, 2010 at 6:37 pm

Steve: I like the news that Fergusson is finally being caught in a criminal act that she knowingly committed! All I can say is that "it's about time." However, I take it you don't like this news as you keep shamelessly defending her.

Posted by Michael G. Stogner
a resident of another community
on Dec 10, 2010 at 7:02 pm

Steve says,

"Thankfully in the 56 years history of the Brown Act, no one has yet been found to be in criminal violation of this law."

In order for someone to be found guilty, you must first have a District Attorney willing to charge, We San Mateo County do not have that, or I should say We haven't had that under the leadership of James P. Fox and DDA Steve Wagstaffe, This could be a first, time will tell.

With Oversight/auditing of the DA's Office for how many Brown Act Violation complaints are received per year and the results of the investigations made public would help.

At the same time, it looks like the process worked and Kelly has resigned and indicated that she will not be a candidate for Mayor.

The idea of pursing this further is overboard. This may be for the DA to decide, but I doubt it would serve in anyone's interest to see Kelly charged with a misdemeanor. I won't condone her actions, but appreciate that she acknowledged wrongdoing. Unless we'd like to vilify her for the sake of punishment, it might be in everyone's interest to move on. I doubt that further punishiment, calls for punishment, or rantings will have any constructive value, at this point. Thank you Peter, thank you Kelly (for acknowledging, and serving), and be thankful that the system works well enough to send an appropriate, firm message, when it is needed. The law, right or wrong, is the law. Let's use it for our good.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 10, 2010 at 7:30 pm

Central Menlo - it is not for me or for you to decide if a crime has been committed and, if so, if charges should be made. That is the job of the District Attorney. We are a nation of laws and that is the way that it should be.

Posted by POGO
a resident of Woodside: other
on Dec 10, 2010 at 9:03 pm

Steve -

"I'd say Kelly's loss of the mayorship, not to mention the public humiliation she's already experienced, has been punishment enough."

I suppose you could say the same thing about Charles Rangel, too.

What Ms. Fergusson did was illegal. Admitting your crime is nice, but that does not exonerate criminal behavior. Furthermore, Ms. Fergusson has a history of Brown Act violations, the most recent during the last election when she authored a chain email and used her official email address for electioneering. She apparently received a "brush up" course on the Brown Act but, as I've said before, she is a slow learner.

The next Brown Act violation could be a back room deal on the Bohannon Property or union pensions. Would either of those issues rise to the level of your concern?

No, I don't think our esteemed District Attorney will prosecute Ms. Fergusson, but he should if for no other reason than to send a message to every elected official in our county that need to conduct official business in the sunshine.

That Kelly violated the Brown Act is just the start of her transgressions in this matter. She has displayed an unethical character that is unfit for public office.

Though hardly believable, she can try to claim ignorance at the time of violating the Brown Act. But thereafter, and prior to the vote for Mayor, she can make no such foolish claim. The record is without dispute. As reported by the Almanac:

"... WHILE MAKING HIS PITCH (emphasis added) for the title, Mr. Cohen pointedly asked the city attorney if there was anything he wanted to bring to the council's attention.

City Attorney Bill McClure told the council that Mr. Cohen had asked him to investigate an e-mail sent to the council by Peter Carpenter, known for his advocacy of open government and the Brown Act.

The e-mail stated Mr. Carpenter had reliable information that "one of the Council members has engaged in a serial meeting to solicit support for that person's election as Mayor." "

Kelly heard Mr. Cohen and Mr. McClure's exchange, and said nothing. There was no admission of mistake. She made no mea culpa apology. Kelly's attitude just prior to vote was a brazen display of unethical and criminal selfishness. She was going to wait to see if her crime could be proven. The council then went on to elect Kelly as Mayor. And she allowed the council to elect her Mayor, knowing she had broken the law. Her violation was willful, and deliberate.

That she waited for Mr. McClure to obtain proof in his investigation, prior to admitting her guilt, and later resigning, is just a further abuse of the public trust. She should be charged with a misdemeanor, she should have to pay the City's legal and administrative fees associated with this debacle, and she should resign from the council.

Why should Menlo Park taxpayers be forced to pick up the bill for her selfishness? Why should she have privilege of casting a vote on behalf of all those whom she has betrayed with her actions?

Watching the election of Mayor at home, we could not help but notice how flustered Kelly became when she moved over to Rich's chair as the new mayor. Indeed she completely forgot that the vote for vice-mayor remained, and seemed confused as she attempted to read the agenda. Just saying.

The positions in Menlo Park city government are nothing more than volunteer positions at a compensation of $600 per month. Council members are surely not doing it for any prestige or for the monetary compensation so the comments on this post indicating criminal activity
by Carpenter and other disparaging comments by people like "Outside Looking In" are indicative of a culture that now sits behind computer
and tries to find faults with others for their own self aggrandizement.

I am appreciative of Ms. Fergusson's many years of service but clearly the small minds that now expect perfection from regular citzens that are interested in serving their communities will be derailed by people such as Carpenter that threaten with criminal action because they failed to dot their i's and cross their t's
and that really is a bigger travesty than this nonsense about
violating the Brown Act. As a taxpayer, I would rather spend more on
the council members that are earning $600 a month than a fire chief
with a high school education making a hefty six figure salary.

Posted by William
a resident of Menlo Park: other
on Dec 11, 2010 at 12:00 am

Thomas says: "the comments on this post indicating criminal activity by Carpenter and other disparaging comments by people like "Outside Looking In" are indicative of a culture that now sits behind computer and tries to find faults with others for their own self aggrandizement."

Does Thomas mean to include himself in this computer culture group?

Thomas says: "citzens that are interested in serving their communities will be derailed by people such as Carpenter that threaten with criminal action because they failed to dot their i's and cross their t's and that really is a bigger travesty than this nonsense about violating the Brown Act."

Who decides which laws get followed, and which are about dotting i's and crossing t's? Thomas?

If you don't like the Brown Act, Thomas, or think that it needs to get modified to be more practical, fine. Lobby the legislature to change it. But it says what it says, and some would argue for good reason (your dotting an "i" is someone else getting screwed over smoke-filled back room discussions). Attacking people like Peter Carpenter, who post with their own names and have served this community for years, reflects very poorly on you.

William, I expressed my opinion on this issue. My opinion would have been deleted by The Almanac if I were attacking Mr. Carpenter as they did on Carpenter's 12/9/10 post at 9:36 P.M. under "Mayor Election Will Be Voided" where he clearly attacked another poster that disagreed
with his position. While I am able to control my thoughts and have never had any of my posts deleted by The Almanac, you should be respectful of those that disagree with your position as should Mr. Carpenter and not be so quick to judge those that that disagree with your position.

Thomas - don't you think it's time you started following your own advice.
By the way what the heck does not having a college education have to do with making a good salary as a a fire chief or for that matter as a high-tech firm founder or an industrialist?
Bring your nose back down to earth Thomas, you keep it pointed up that high and your bound to bang your chin into a pole.

Bob, thanks so much for proving my point. Why should anyone working for minimum wage at McDonald's be compensated more than our city council members and there is a fire chief that collects an unheard of salary in these hard economic times. Wake up as it's your tax dollars that are being wasted. Let's hope our new council will investigate new ways to
reduce the salaries of our over paid public servants.

Go put a fire suit on and stand in the middle of an inferno, before you argue fire fighters should be paid less than City Council members. The argument that a firefighter's educational level somehow how affects what they should earn in a job where their life is at put at risk for you and me, frankly smacks of the same type of elitism and entitlement that which lead to Kelly's mistake. Would their life be worth more in the fire with an ivy league education?

You also seem to ignore that City Council members often have dreams of state higher office with salaries, paid pensions, and power. It's one of the worst kept secrets in the County that Kelly has had her eye on higher office. Her motivation to be elected mayor should not be ignored.

Since Carpenter want to promote himself with entries about hismelf on this thread, please note the following from the Daily news:

============================

Watching the watchdog

If not for the watchful eye of Atherton resident Peter Carpenter, Kelly Fergusson might still be settling into her second stint as mayor of Menlo

Park.

Carpenter's sleuthing revealed Fergusson violated the state's open government law when she lobbied two council colleagues  enough to constitute a serial meeting quorum to support her selection as mayor Tuesday. She resigned Friday, ahead of a meeting at which the council will hold a second vote.

So, when Carpenter was appointed to the Menlo Park Fire Protection District Board of Directors on Thursday filling the seat vacated by newly installed Menlo Park Council Member Peter Ohtaki

"I talked to two, and only two, of the four remaining members of the board," said Carpenter, underscoring that it was not enough to constitute a quorum, "both of whom encouraged me to apply for the position and I did."

Carpenter says he will finish Ohtaki's term and not run for re-election.

It's his way of preventing someone from using the appointment to gain an upper hand in the next election for the seat.

"You don't give the job to somebody who has not been vetted for the voters a distinct advantage," Carpenter said.

=========

So Carpenter only talks to 2 of the remaining 4 Fire District board. Of, couse he is an old buddie with them all; maybe not a Brown act violation, but certainly behind the scenes posturing that the Brown act seeks to prevent.

Posted by POGO
a resident of Woodside: other
on Dec 11, 2010 at 8:11 am

Watching the watchdog -

You miss the point of the Brown Act completely. I have to believe it is an intentional misrepresentation since you appear to be intelligent.

The Brown Act applies to elected officials and appointees. It does not apply to citizens.

A citizen, such as Mr. Carpenter, is completely free to speak to as many elected officials as they wish and they may do so in public or in private. Citizens can do this to seek a permit, variance, legislation, commendation, appointment, commutation, or even a personal tax break. That is their right.

Elected officials, however, cannot do this, at least not SECRETLY. They are not permitted to huddle in private (at least as a quorum) and conduct official business. That is why we have sunshine laws such as the Brown Act. And as a concerned citizen, I want to see how my elected officials come to decisions.

That doesn't mean that elected officials are prohibited from speaking to each other outside the forum of official meetings. They do. What they cannot do - and I don't know how anyone reading this thread wouldn't understand this by now - is convene SECRET meetings and come to an agreement. A secret process eviscerates the entire purpose of public meetings. Why have public meetings at all? Perhaps city councils should just meet privately at each other's homes and conduct their business without any oversight.

And that is precisely what Ms. Fergusson did. She has done this before, said it was innocent and unintentional, told everyone how sorry she was... and then went on to do it again.

At what point do voters and the District Attorney say "enough?" The citizens of Menlo Park and San Mateo County deserve far better.

Posted by Menlo Voter
a resident of Menlo Park: other
on Dec 11, 2010 at 8:27 am

It's been said before, but I'll say it again. In this situation Kelly is either incompetent or a criminal. She's incompetent if after serving 10 years in public office she still doesn't understand the Brown act. She's a criminal if she does understand the Brown act and chose to violate it anyway. In either case, especially given this is not the first time, she is not fit to serve. She should resign from the council all together. It would be a shame to lose her, but she has a history of this and I don't like it and don't want to tolerate it.

Thomas - I was being respectful. My concern was for your well-being. I didn't want you having to be treated by one of those "overpaid" fire chiefs, thus wasting our, oops - I mean your, hard earned tax dollars.
Anyways I guess we should get back on subject - the behaviour of council members rather than salaries.

Posted by watching the watchdog
a resident of Menlo Park: Felton Gables
on Dec 11, 2010 at 10:42 am

@Pogo

I certainly understand the Brown act. Please read what I wrote.

I am not in any way accusing Carpenter of violating the Brown Act. However, what the Brown act seeks to prevent, behind the scenes decisions, may have actually taken place because of the particular circumstances in that case. Rather than his just announcing publicly that he was interested in filling the position, that this was all he was going to say, would have been far preferable.

Let's not get distracted by this... this is about Fergusson and Menlo Park.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 11, 2010 at 11:11 am

Watching the watchdog - I can guarantee that there were NO behind the scenes discussions or decisions by either myself or the four Director of the Fire Board regarding my appointment. I never asked any of them to support me, I applied because I was asked to do so and in response to a public invitation issued to all members of the community over a month ago, and I had no idea what the vote was going to be on Thursday night until that vote occurred.

Your attempt to smear by innuendo and anonymously is a sad commentary on your integrity -not mine.

Being an elected official was something Kelly has spent significant amount of time and money pursuing. I believe she does have the best intentions of improving Menlo Park, but her effect on the City Council has been divisive. I wish she would resign. Her resignation from the City Council might be thorn that needs to be removed to allow the Menlo Park City Council to focus on City business, not Kelly's special interests.

Posted by Outside Looking In
a resident of Menlo Park: other
on Dec 11, 2010 at 12:20 pm

Thomas: In response to your statement: "The positions in Menlo Park city government are nothing more than volunteer positions at a compensation of $600 per month. Council members are surely not doing it for any prestige or for the monetary compensation so the comments on this post indicating criminal activity by Carpenter and other disparaging comments by people like "Outside Looking In" are indicative of a culture that now sits behind computer and tries to find faults with others for their own self aggrandizement."

Actually, to me holding a public office and/or being involved in public service is the highest honor anyone can be bestowed of. Serving with honesty, integrity, and a high standard of ethics should not be an option-- it should be the standard. The public trust should be the most important priority for anyone involved in public service-- whether it's serving on a jury, commission, or in elected office.

In my opinion, elected officials should not be compensated or should be compensated in such a minimal way as to cover expenses, which should be kept at a minimum, as well. One serves because he/she has the heart and genuine care to serve the public. The public trust cannot and should not be broken, under any circumstances.

What we are seeing now with our elected officials is exactly what Fergusson embodies-- corruptness and believing the law does not apply to them. Fergusson's behavior is not what the Founding Fathers intended for anyone serving in public office-- elected or not. George Washington was the best example of a true public servant-- being able to walk away once you believe your duties and responsibilities have been fulfilled.

Therefore, I believe you and I have very different views of what public service is. I take the view that it is a great honor to be able to serve the public. That honor and genuine intent to truly serve the public should have no pay-back in mind, whether it's monetary compensation and/or the next political office. A true public servant would have no ambitions like these, and I believe Peter Carpenter is one of them.

Unfortunately, political parties are now getting in the way. This situation is exactly what George Washington warned against-- even a middle school history buff can tell you that! With special interests vying for political influence, I fear we are truly going down the wrong path. That's why it is even more important that people like Peter Carpenter and me voice our opinions and outrage when there is an abuse of the true meaning of public service. Plus, it is our First Amendment right, and I personally am a firm believer in the First Amendment. And, yes, it can be a double-edged sword that could produce a result that I don't like, such as burning the American flag. But, to me the First Amendment is sacred.

It's people like you who judge people like me that make me want to write under an alias. I'm sure that's why you have never fully revealed who you are, as well. Perhaps, I'm not as brave as others like Peter, but I am a watchdog and have been for many years. I call the situation as they are.

I'm sorry you believe my comments are disparaging. However, I believe holding elected officials accountable and punishing them for breaking the law and violating the public trust is important. Again, to me, it is the greatest honor to be able to serve the public, and that service should not be based on the next political office, to which Fergusson aspires, nor financial compensation. Public service should be based on honor and the desire to genuinely take the public trust and take good care of it. Fergusson has not done that!

Posted by whatching the watchdog
a resident of Menlo Park: Felton Gables
on Dec 11, 2010 at 12:41 pm

Mr. Carpenter:

I am not attempting to smear you. I have only reprinted what the PA Daily posted wherein they state:

(your statement to them)

"I talked to two, and only two, of the four remaining members of the board," said Carpenter, underscoring that it was not enough to constitute a quorum, "both of whom encouraged me to apply for the position and I did."

I don't know what you talked about; you apparently now say, it wasn't about the appointment. Why didn't you tell the Daily your conversations had nothing to do with the appointment, which you now say was the case.

Again, I am not smearing you, I am only saying what appeared to be obvious --- that you did not commit a Brown act violation, but that what the Brown act seeks to accomplish, might well have been defeated by what took place in this case.

Quite frankly I am quite happy to have you again on that board --- you did a good job and I expect will continue in that vein.

Posted by Why this is important
a resident of Menlo Park: Stanford Hills
on Dec 11, 2010 at 2:28 pm

Every council member who is sitting on the dias has raised his/her right hand and sworn to uphold the "consitution of the U.S. and the State of California". Kelly swore to uphold the laws of our State. She broke said law. We and she may think it is a stupid law and not very important. But, she didn't take an oath to uphold those laws she thinks are important! She took an oath to uphold the law, period.

I know that in this day and age we all expect our politicians to be dishonarable. But, when they admit to breaking the law and/or are caught doing so, they should be held to a higher level. Why? They have come asking us for our vote; they have sworn to uphold the law. Like it or not, they need to be judged on a higher level.

Even though I voted for Kelly; I believe she should do the honorable thing now and resign from the council. Let's end this and move on so that the City can get closure.

Posted by POGO
a resident of Woodside: other
on Dec 11, 2010 at 5:07 pm

Outside Looking In -

Your last post is one of the best messages I've ever read on this website. Thank you for taking the time to write such a thoughtful message. I couldn't agree with you more.

One thing is for certain, power can corrupt. I suppose the egos of our elected officials inflate when they see people hanging on every word they say. After a while, I guess the officials start to believe their own hyperbole.

It would be nice if council members could stay a bit more grounded, remember that they serve at the pleasure of the electorate and occasionally show some integrity and respect for citizens.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 11, 2010 at 5:07 pm

Watching the watchdog - you keep saying "I am only saying what appeared to be obvious --- that you did not commit a Brown act violation, but that what the Brown act seeks to accomplish, might well have been defeated by what took place in this case."

This is a cowardly anonymous smear that has no basis in fact. Unless you have some evidence to support your statement, I think that you owe the members of the Fire Board an apology.

Posted by Outside Looking In
a resident of Menlo Park: other
on Dec 11, 2010 at 6:14 pm

To POGO: One more thing... I think every elected official should remember that he/she is doing the business of the people. The public trust is given by the people, and that should be taken care of with a generous heart and an open mind.

Earlier this week, she forwarded a letter asking them not to deviate from the usual practice for electing mayor.

"City council's mayoral rotation policy places me as mayor for the Dec 2010 to Dec 2011 period," she wrote. "I ask for your support of this fair, balanced, and long-standing policy."

Fergusson told The Daily News it's not just a matter of it being her turn -- she also has strong qualifications for the job. She noted that the year after serving as mayor she was the top vote-getter in the November 2008 election for a second term.

"I was a very popular mayor," she said.

Last month Peter Ohtaki, recent president of the Menlo Park Fire Protection District board, collected the most votes for council, 22.1 percent, followed by planning commissioner Kirsten Keith with 20.3 percent and Cline with 19 percent.

Fergusson said she could see Ohtaki as vice mayor, noting that by council policy, members must serve at least a year before being considered for mayor.

*********

In her resignation letter as Mayor, Kelly now says she is recommending that policy not be followed. Kelly only wants policy followed when it suits her ambitions. That is really outrageous.

She has created a really chaotic situation in Menlo Park. Right now, according to McClure, Keith is acting Mayor.

It has been suggested, and I agree, Fergusson should not be allowed to participate any further in the selection of a new Mayor or vice-Mayor.

Cline is on record as saying he would abide by policy. Is he going to change his position?

Closest to policy would suggest nominating Mayor Cline for another term, with Mr. Ohtaki (highest vote-getter) as vice-mayor. Another option would be Mr. Cohen for a second term. In any case, this situation will need some variance from the adopted policy.

It may be wishful to think that the positions will be irrelevant; that our new council will be remembered for productivity in the interest of our quality of life and economic health. Second, but worthwhile - to look back some day and thank our five council members for a term well-served.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 11, 2010 at 6:56 pm

As I stated above - A rotational policy established by a previous council is not binding on the current council because it was a policy statement and it was not adopted as an ordinance. The current council may wish to adopt that policy or not - that is their choice and that is why why we have elections. What good is it to elect new people if they are bound by the previous councils policies?

If the citizens wanted this policy to be a standing one binding on all future councils then it would need to be made an ordinance. In the absence of such an ordinance the policy of previous councils is meaningless.

Closest to policy is Cohen. Policy clearly states, the position of Mayor shall be rotated, that is a Mayor should not be selected who was currently seated. That rules out Cline. It has been over 20 years since a Mayor was chosen to serve another consecutive term.

Policy can be ignored. Last Tuesday, council decided to follow policy. Are they going to change their position, as Fergusson desires, because she is no longer available?

Is she, as an outcast, going to be the driving force on this issue? WOW!!!

As McClure clearly stated, Council can do whatever it wants. Follow policy or not follow policy.

Mr. Carpenter, wrong,
You both make good points. No doubt that the policy is not set in stone. I will add that I voted in this election, with the understanding that the policy is generally followed (and in support of the policy).

Given that the policy cannot be followed in a strict sense (and is not binding), it seems that Messrs. Cline and Cohen are the likely candidates. Toss a coin for Vice-Mayor.

Two things that Kelly wrote in her two statements struck me as important in evaluating her intent. In her Thursday statement she wrote of her phone calls to Rich Cline and Peter Ohtaki:
"If there was a violation, it was not intentional. I believed I was lobbying or stating my position to inform members of the council, and to gain their support."
She elaborated on these conversations in her Friday statement:
"At the time, I did not consider my individual contacts with council members or lobbying of members on my behalf to constitute a serial meeting nor did I intend to violate any provision of the Brown Act."
Taking her at her word (and I see no reason to do otherwise) it seems to me that she did the same thing as most potential candidates (including Peter Carpenter apparently) before such in internal vote: she explained her desire to serve and attempted to gauge support among her colleagues.
As I've said several times before, she did nothing differently than most candidates for mayor have done every year since Charles Burgess lobbied for support to be Menlo Park's mayor way back in the 1940's.
Why are we so outraged in this instance but so unconcerned about all the previous violations of the Brown Act that went unreported?
Could it be because the infraction is, in fact, inconsequential?
Could it be because the 2 conversations qualify as a "secret meeting" only by the strictest reading of the Brown Act?
Could it be because this tempest in a teapot is as much politically motivated as it is an attempt to assure that the people of Menlo Park remain informed? The dislike of Kelly by most of the denizens of this forum comes through loud & clear; the concern for the public's legitimate rights to be informed? Not so much.

One more reason why I think Peter's letter to the DA urging criminal prosecution for this minor violation of the Brown Act is way over the top:
According to the Brown Act pamphlet written by the state Attorney General Web Link
"The district attorney may seek misdemeanor penalties against a member of a body who attends a meeting where action is taken in violation of the Act, and where the member intended to deprive the public of information which the member knew or has reason to know the public was entitled to receive."
Based on her statements it doesn't appear to me that Kelly "intended to deprive the public of information", nor that she even considered that "the public was entitled to receive" the content of her conversations.
I'm confident that the DA will come to the same conclusion.

Steve - it was speaking directly to two council members and using an intermediary to contact the third. And no it's not inconsequential. She's played with the Brown Act before. She's been in office way too long to use the excuse that she didn't think what she did was in violation.
Fergusson seems to think she can smile it all off like a fashion faux pas - brown shoes and black belt.
And her statements after the fact - well let's see they pretty much have the same sincerity as - officer I didn't think I was speeding; am I supposed to buy my CalTrain ticket before boarding; oh it's ok, I didn't know the gun was loaded.
Give us a break Steve - when has a politician ever admitted anything without giving an excuse, and pretty lame ones at that.

Posted by looking on
a resident of Menlo Park: Downtown
on Dec 12, 2010 at 5:44 am

The comments from Steve show either complete ignorance or more than likely, as a supporter of Ferugsson, he is just trying anything and everything to excuse her behavior and put her in the good graces of Menlo Park.

Fergusson has broken the law. She admits to it. McClure states this is the case.

Steve writes:

"As I've said several times before, she did nothing differently than most candidates for mayor have done every year since Charles Burgess lobbied for support to be Menlo Park's mayor way back in the 1940's."

This is pure unadulterated crap, Steve. These other candidates didn't violate the Brown Act. Fergusson broke the law.

As a prior planning commissioner and now with 4 years experience on the council, she has absolutely no excuse for what she did. She just can't state ignorance, and have anyone believe her.

Then to top it all off, she now wants the council to ignore the policy under which she was expected to be chosen, and she wants to have a vote just like nothing has happened.

Her self serving political ambitions and promotion of herself have completely taken over. She should be viewed now as an outcast.

I personally think she should resign from council, but she won't. I voted for her twice. I'm disgusted.

I do agree Carpenter is way over the top with going to the DA. That should only take place if the Council won't deal adequately with the situation on its own.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 12, 2010 at 7:20 am

Steve states:"she did the same thing as most potential candidates (including Peter Carpenter apparently) before such in internal vote: "

Steve - please pay attention, as others have noted I was not a member of the Fire Board when I was contacted by two members of the Board and asked to become a candidate and hence the Brown Act did not apply to me. Notwithstanding the fact that the Brown Act did not apply I took the additional precautions of neither asking any member of the Fire Board if they would support me or of discussing my candidacy with a majority of the Board. I had no idea what the vote would be (unanimous 4-0 to appoint me) before the vote was taken.

Posted by looking forward to the people's work
a resident of Menlo Park: Downtown
on Dec 12, 2010 at 8:30 am

looking forward to the people's work

in alphabetical order -

Cline : Pro - during mayoral term served credibly
: Cons - selection would not be in keeping with the rotation policy;
during term, seems to have had little fiscal restraint;
did not commit to defend Measure L

Cohen : Pro - selection would keep with rotation policy
: Con - has completely lost the support of his colleagues Cline and Fergusson

Keith : Pro - legal background of help in city's defense of "L"
Con - was there a quid pro quo with Fergusson to exchange
support for mayor to get the vice mayor position?

Ohtaki : Pro - financial background to deal with city's fiscal problems;
experience in legislative body of fire board;
leading vote total in keeping with informal policy in recent years
: Con - selection would not be in keeping with the rotation policy

Posted by Outside Looking In
a resident of Menlo Park: other
on Dec 12, 2010 at 9:37 am

To Steve: I am re-posting my previous post but in response to your post: "Why are we so outraged in this instance but so unconcerned about all the previous violations of the Brown Act that went unreported?"

First of all, we are outraged by previous violations of the Brown Act that have gone unreported. However, in this situation, Fergusson was caught in the act-- complete reckless disregard for the law. Perhaps, she was less careful this time because she's never been caught before. Even the appearance of impropriety is unacceptable for people who serve the public. Because the people's money is at stake, aka tax dollars, public servants' behavior-- elected or non-elected-- should be held to the highest standard.

To me holding a public office and/or being involved in public service is the highest honor anyone can be bestowed of. Serving with honesty, integrity, and a high standard of ethics should not be an option-- it should be the standard. The public trust should be the most important priority for anyone involved in public service-- whether it's serving on a jury, commission, or in elected office.

In my opinion, elected officials should not be compensated or should be compensated in such a minimal way as to cover expenses, which should be kept at a minimum, as well. One serves because he/she has the heart and genuine care to serve the public. The public trust cannot and should not be broken, under any circumstances.

What we are seeing now with our elected officials is exactly what Fergusson embodies-- corruptness and believing the law does not apply to them. Fergusson's behavior is not what the Founding Fathers intended for anyone serving in public office-- elected or not. George Washington was the best example of a true public servant-- being able to walk away once you believe your duties and responsibilities have been fulfilled.

Therefore, I believe you and I have very different views of what public service is. I take the view that it is a great honor to be able to serve the public. That honor and genuine intent to truly serve the public should have no pay-back in mind, whether it's monetary compensation and/or the next political office. A true public servant would have no ambitions like these, and I believe Peter Carpenter is one of them.

Unfortunately, political parties are now getting in the way. This situation is exactly what George Washington warned against-- even a middle school history buff can tell you that! With special interests vying for political influence, I fear we are truly going down the wrong path. That's why it is even more important that people, like Peter Carpenter and me, voice their opinions and outrage when there is an abuse of the true meaning of public service. Plus, it is our First Amendment right, and I personally am a firm believer in the First Amendment. And, yes, it can be a double-edged sword that could produce a result that I don't like, such as burning the American flag. But, to me, the First Amendment is sacred.

It's people like you, who judge people like me (in previous posts), that make me want to write under an alias. I'm sure that's why you have never fully revealed who you are, as well. Perhaps, I'm not as brave as others like Peter, but I am a watchdog and have been for many years. I call the situations as they are.

I believe holding elected officials accountable and punishing them for breaking the law and violating the public trust is important. Again, to me, it is the greatest honor to be able to serve the public, and that service should not be based on the next political office, to which Fergusson aspires, nor financial compensation. Public service should be based on honor and the desire to genuinely receive the public trust and take good care of it. Fergusson has not done that!

Looking on -
I get that you don't agree with my arguments but please tone down the ad hominem attacks, they don't really contribute to the discussion.
I'm simply making the point that Kelly did nothing differently than most candidates for mayor have done every year since Charles Burgess lobbied for support to be Menlo Park's mayor way back in the 1940's. You say these other candidates didn't violate the Brown Act but you obviously have no proof of that. At least Outside Looking In admits to these previous violations of the Brown Act and claims to be outraged.
I'd say you're naive to think that other mayoral candidates didn't take such informal polls of their colleagues in almost every prior election - and that's really all Kelly is guilty of here. And if they did, then they broke the law just the same as you claim Kelly did. Shall we resurrect those previous violations of the Brown Act and invalidate their mayorships just to be consistent?

Peter -
Please pay attention. I did not claim you were a member of the Fire Board when you had those conversations, nor that you were subject to the Brown Act. I said you were a potential candidate attempting to gauge your support prior to the internal vote, the same as Kelly was doing with her 2 conversations. Such political jockeying before a vote is as old as the hills and I see nothing wrong with it.
You have truly made a mountain out of a molehill and, in the process, soured the relationships among the council even as it was beginning it's 2-year term. Nice work.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 12, 2010 at 11:23 am

Steve states:"I said you were a potential candidate attempting to gauge your support prior to the internal vote, the same as Kelly was doing with her 2 conversations. Such political jockeying before a vote is as old as the hills and I see nothing wrong with it."

First, as stated I did NOT attempt to gauge my support before a vote, in fact I carefully avoided doing so even though the Brown Act did not apply in my case.

Second, we now finally see exactly what Steve means - he sees nothing wrong with Fergusson breaking the law. I strongly disagree and believe that when someone breaks the law that they should be held accountable. End of discussion.

Steve,
The idea of informal polls isn't surprising, and there is certainly understanding in your point, that they might not be bad (or ill-intended).

That said, some see a problem where the poll moves to another level, for example, a quid-pro-quo, or other agreement. For the sake of argument, would it have been okay for Kelly to simply poll her colleagues? Would it then be okay if Kelly approached Mr. Ohtaki, or Ms. Keith, to ask for their vote in exchange for her support to nominate them as vice-mayor?

Peter -
So are you willing to revisit every prior mayoral election to review whether there were Brown Act violations and, if found, to move to overturn those mayorships? Accountability above all, not to mention consistency.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 12, 2010 at 11:43 am

Central Menlo - the law is clear:

"any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is
prohibited. (§ 54952.2(b).)

Central Menlo -
I appreciate that you're willing to entertain the idea that Kelly's conversations with Rich & Peter might have had a benign purpose with no intent to deprive the public of information. I know that if I were in the position of facing such an election, I'd want to know where my potential allies stood.
As to your question about the possible slippery slope of moving to another level I'd say that the council members at the other end of a possible quid pro quo agreement also have the responsibility to object if something unethical is being suggested. That neither Cline nor Ohtaki apparently had any problem with the conversations indicates to me that they didn't see any such ethical issue.
The legal line that was crossed in this case was that by talking to 2 colleagues, she attained a quorum and thereby created a "secret" serial meeting, thus violating the letter, if not the intent, of the Brown Act.
I suspect this dilemma occurs frequently whenever 3 or more council members are at a function together. They probably have to frequently curtail discussion when they veer toward community issues due to Brown Act concerns. It's obviously a gray area on a practical basis. From a legal perspective, the lack of Brown Act convictions indicate that it's also a difficult issue for the courts.
It does make me wonder who spilled the beans to Peter Carpenter and if they perhaps suspected Kelly was talking to other members of the council. If they had this suspicion during the conversation, it seems to me they should have expressed their concern to her rather than tattling on her afterwards. This apparent backstabbing doesn't bode well for the collegiality of this council.

Posted by POGO
a resident of Woodside: other
on Dec 12, 2010 at 1:11 pm

Steve -

Some citizens want their government in the sunshine, some apparently think it is just a "molehill" when an elected official tries to do things secretly.

You are correct that this is "politics as usual" and the electorate convulsed just one month ago. Don't you expect better? Shouldn't we expect better? If you condone it, you can expect more of it.

While it is your right to ignore this behavior when you agree with the perpetrator's political positions, it is transparently disingenuous. I presume you didn't feel the same way when George Bush convened those secret meetings to determine energy policy. And his meetings weren't even subject to a sunshine law!

POGO -
I indicated that I had no problem with this kind of political lobbying for all previous internal mayoral selections, regardless of political persuasion - nothing disingenuous about that. If you have such a problem with it, why aren't you outraged at the previous mayoral elections when the same sort of lobbying as Kelly engaged in undoubtedly occurred? Seems to me you're the one choosing to be selectively outraged.
And to equate Kelly's lobbying with GWB's secret energy meetings is preposterous. GW had clear intent to deprive the public of information in convening his closed meetings. From Kelly's statements it's clear she had no such intent.
Even if you choose to doubt her statement, her intent is at worst ambiguous. What information was she keeping from the public? That she wanted to be mayor? That Rich or Peter did or didn't support her? That she thought Keith might be a good Vice mayor? All this information came up in the meeting and saw that blessed sunshine we all value so much, including Kelly.
This farce has accomplished almost nothing good for the city of Menlo Park - it's created disharmony on a new council - it's distracted attention from the important issues on the council's agenda - it's probably discouraged some good people from ever considering running for city office. And if you think it will stop this sort mayoral pre-selection lobbying that's been with us forever, you're dreaming.

Posted by DrFeelgood
a resident of another community
on Dec 12, 2010 at 5:58 pm

Dream on...........all of you in all of these posts.
Do you truly believe there is not something which has done a lot of damage to a lot of people and character?
It increases steadily.
Just let it go and keep dreaming.

Posted by Interested
a resident of another community
on Dec 12, 2010 at 6:05 pm

Steve's comments about former Mayor Mr. Burgess are right on point....

He might well have lobbied behind the scenes to become Mayor....WHY DO YOU THINK THE BROWN ACT WAS ENACTED. It was to put a stop to exactly that kind of behavior. That assumes of course that Steve has any evidence to suggest that he did. Which I very much doubt. To cast dispersions on Mr. Burgess for actions he may have taken in the 1940's, long before the Brown Act was passed is both futile and reprehensible. And assuming you had such evidence what good would it do? The answer is nothing. Its just another attempt to divert us from the problem at hand.

I really hope that a resident of Menlo Park make a written request of the City to obtain the records of just how much money has been spent by the City of Menlo Park in paying for the attendance of Kelley Fergusson for attendance at all and every Brown Act seminars and conferences......If not a citizen, maybe the Almanac should ask....

Posted by Menlo Voter
a resident of Menlo Park: other
on Dec 12, 2010 at 6:39 pm

My email to Ms Fergusson:

Kelly:

you need to resign from the City Council. You are either incompetent or you knowingly committed a criminal act. You are incompetent if, after ten years of public service, you didn't know you were committing a Brown Act violation. You committed a criminal act if you knowingly violated the Brown Act. Unfortunately, I think you knowingly broke the law. You did it before and now you've done it again. In my book you only get one "oops I didn't know."

You have lost all credibility. It is a shame too, as you have done many good things for the citizens of Menlo Park. As a citizen of Menlo Park I call for you to resign from the council as I don't think you can be effective any longer. Everything you do is going to be questioned because of your demonstrated lack of regard for the rule of law.

Posted by WhoRUpeople
a resident of another community
on Dec 13, 2010 at 8:42 am

Ms Brundage-just got back from the weekend. I wanted to thank you for responding to my previous questions and clarifying the omission from the original article.

All other posters - a couple of things to think about. Since Kelly has officially resigned as mayor, if the Council opted not to accept the City Attorney's request to void the election(which I think they can do), would not then Ms Kieth's vice mayor election be valid, and would she not automatically become mayor? I'm not promoting Ms Kieth, just musing at how screwed up this whole process has become. Secondly, on the subject of whether or not Fergusson should resign from Council. If she did, I assume the Council would then have to appoint someone to fill her seat until the next regular election. If so, would/should that logically be the losing candidate in the recent election with the most votes? Which I believe was Robinson. Again just musing ..... My real point is to try to underscore a couple of maybe not so obvious reasons that careful and full attention to the Brown Act and its purpose is sooo important.

Posted by Brielle Johnck
a resident of Menlo Park: The Willows
on Dec 13, 2010 at 6:04 pm

There will be no appointment. Calm down. Fergusson's indiscretions are nothing more than ambition gone wild, poor judgment and a big case of insecurity. She resigned as Mayor. Stop calling for blood. Why didn't someone run against her 2 years ago? We are now paying for our unwillingness to participate.

2.04.190 Filling of vacancies on the City Council.
If a vacancy occurs in the office of a member of the City Council, an election shall be held to fill the vacancy. The person elected shall hold office for the unexpired term of the former incumbent. the election shall be held at the next regularly scheduled election held at least eighty-nine days after the vacancy is created. In the event, however, that only two of the five offices are occupied, those two members of the City Council may appoint a third member of the City Council. (Ord. 559 § 1, 1974).

...

This page of the Menlo Park Municipal Code is current through Ordinance 965, passed October 6, 2009.
Disclaimer: The City Clerk's Office has the official version of the Menlo Park Municipal Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above.

Posted by Tim Wulff
a resident of another community
on Dec 13, 2010 at 11:19 pm

The Brown Act is not a good idea gone bad.

It is only expression of the single most important tenet of governmental control by citizens: The free and untrammeled release of public information to the public.

Without institutions which are honored by all and actively enforced by law enforcement, power is maintained and executed in secrecy by government officials. A condition which any reasonable person who holds the interest of citizenry above that of government as their highest prioritized value which determines their choices and actualizations of their values finds utterly unacceptable and abhorrent.

The revelation of public information to the public is the cutting edge principal which will determine whether we will soon be oppressed by a tyrannical government in a condition of having been deprived of systemically mandated recourse, or whether we will have bought an all-be-it brief respite in which we may yet enjoy the few remaining freedoms we yet enjoy in the face of a pervasive government mandated campaign of propaganda and behavior modification techniques (such as TSA, global warming myth and recycling programs designed to train us to become subservient slaves to the will of the state.

Posted by open government
a resident of Menlo Park: Central Menlo Park
on Dec 14, 2010 at 1:06 am

The issue of open government is not a trivial one and a very important principal. Four years ago, the employee unions managed to time their CLOSED SESSION labor negotiation so that THREE inexperienced and uninformed council members, Robinson, Cline, and Boyle would sit across the table from management who had a financial interest in the outcome. The result was the $6.4million pension giveaway. Tomorrow, at Tuesday's CLOSED SESSION, the unions are AGAIN sitting across from two NEW council members. I believe that Ohtaki is reasonably wise in the ways of the such things, BUT I ASK, why is it all done out of the view of the public? Please communicate to the council that we SHOULD HAVE OPEN NEGOTIATIONS...

Open Gov -
The Brown Act specifically excludes labor negotiations from it's open meeting requirements. The reasoning for this is clearly explained in a guide to the Brown Act put out by the League of California Cities:
"In general, the most common purpose of a closed session is to avoid revealing confidential information that may, in specified circumstances, prejudice the legal or negotiating position of the agency or compromise the privacy interests of employees. Closed sessions should be conducted keeping those narrow purposes in mind."
There are Brown Act requirements that allow the public to learn what was decided in the closed meeting. Again, from the guide:
"Following a closed session the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session. The announcements may be made at the site of the closed session, so long as the public is allowed to be present to hear them."

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 14, 2010 at 2:08 pm

The Brown Act never requires closed meetings for any purpose and only allows them when such closed meetings are deemed essential. I believe that most local agencies vastly overuse the closed meeting exemptions and simply like the secrecy which those closed meetings provide. Such closed meetings become addictive because they are so easy and simple but democracy was not designed to be efficient.

Open Gov -
Your characterization of the 2007 labor negotiations is based on your imagination of what transpired since you obviously were not there to observe. You also fail to note the different circumstances of 2007 and that similar negotiations with similar outcomes were happening in cities up & down the peninsula and throughout the state.
For those with memories of 2007, they recall that the economy was booming, unemployment in the county was less than 4%, and cities were scrambling to retain employees who were finding better jobs in the private sector. A common negotiating tactic of cities to retain their employees, without increasing budget outlays that a simple salary boost would have entailed, was to offer improved pension benefits. Remember that, at the time, CALPERS was seeing returns of over 20%/year and was continuing to cover most of the employer costs. To city & county councils throughout the state, this looked like a very good deal: retain employees by promising improved pensions that the city wouldn't have to pay for, at least in the near term. Even if the economy were to weaken, CALPERS wouldn't be passing along increased costs for at least two years, based on their formulas for calculating & passing along employer contributions.
What no one predicted was that the economy wouldn't just weaken but, a year and a half later, it would nearly collapse, leaving CALPERS and employers to scramble to maintain funding for the new, more generous pensions that had been promised. And in addition, to renegotiate the pensions for new employees, which we're seeing happen not only in Menlo Park but throughout the state.
Bottom line: you don't need to invoke union shenanigans during the 2007 negotiations to explain the pension increases. They were primarily a product of a successful economy that only after the market crash in 2008 have put cities & counties throughout the state in the same situation as Menlo Park.
If Cline, Robinson and Boyle were taken advantage of as you suggest, then so were most other councils throughout the state. A more likely explanation is that those decisions to raise pensions were arguably the right decision FOR THE TIME. They were only shown to be too generous in the light of the near depression that we're currently experiencing.
By the way, Measure A would have made no difference at the time since increasing pensions for city employees was obviously considered the right thing to do, especially here on the peninsula where wealthy cities were fighting each other to retain their employees. Measure A is nearly unique in the state with most other cities choosing to correct their problems through renegotiating employee contracts - HANDLED BY THEIR ELECTED REPRESENTATIVES without the need for a special election.

In the first letter in this forum Sally raises a question that was never really answered. She said:
"Maybe we should also be talking about new member Ohtaki violating the Brown Act as well. It certainly appears that he and Cohen have had discussions prior to the meeting on the 7th. If that is the case he should get the same treatment as Fergusson as that would mean that he spoke to Fergusson and Cohen on the agenda item."
On the face of it it does seems that Ohtaki may have held his own serial meeting in talking with Kelly and then, apparently on his own volition, with Andy. Order of conversations matter though because if he'd talked to Andy first, before Kelly called him then that wouldn't be the case.
Of course, one can claim that Ohtaki hadn't yet been sworn in as a council member at the time the conversations were held (before the meeting) and so wasn't under the strictures of the Brown Act so he wasn't even in a position to violate it. By that same reasoning though, Kelly's call to Ohtaki technically wouldn't have violated the Brown Act either since, when she talked to him, he wasn't actually a member of Council.
Curiouser and curiouser!

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 14, 2010 at 3:51 pm

My "cure and Correct" letter to the City Attorney stated:

" There is reasonable cause to believe that at least one council member and or his/her intermediaries communicated with two or more of the other council members or council members-elect in private prior to this meeting regarding the agenda topic of election of Mayor and Vice Mayor. "

The City Attorney investigated the matter, interviewed all five council members and found that only Ferguson violated the Brown Act. Absent other evidence that would seem to settle the issue.

I was interested to learn that the Brown Act applies to our city council (and related bodies), but does not apply to our California sate legislators. I suppose that it is easier to practice (and enforce) with a quorum of 3 (v. the full legislature).

Posted by Brown Act Expert
a resident of another community
on Dec 27, 2010 at 10:09 pm

Let's say that you have Council members A, B, C, D, E. Council member A calls Council member B to discuss a topic. It is Council member A's RESPONSIBILITY to first ask B "have you spoken with any other council members about this topic?" If the answer is "yes", then Council member A must not say another word to B on the topic. If the answer is "no", A and B may then proceed to discuss the topic. Neither one of them can contact or be contacted by C, D, E on the topic. If C, D, or E contacts A or B, A or B must immediately stop the discussion by indicating "I've already discussed this with another council member."

In 1999 I hand-carried to Jim Fox a printed copy of an agenda from an agency on the Coastside which contained prima fascia evidence of a Brown Act violation. (I got in to see Fox because I was at County Center on another matter with my agency's General Counsel, who happened to be an old buddy of Fox's.) Fox, being the nephew of Half Moon Bay's "godmother", wouldn't even look at it, stating that he wouldn't prosecute a Brown Act violation. So there you have it.

Unfortunately, the primary Brown Act remedy for decisions made which were not properly agendized is that the decision is nullified and has to be properly agendized, re-discussed, and re-voted.

Bagley-Keene applies to Statewide agencies. It is virtually identical to the Brown Act with the difference that the Brown Act requires that every member of the public who wishes to speak on an item be given time to do so. Bagley-Keene requires that time be allocated to allow the public to speak on each item, but Bagley-Keene does not require that every member of the public who wishes to be heard will actually be heard, only that some members of the public will be heard.b

Posted by Michael G. Stogner
a resident of another community
on Dec 28, 2010 at 1:28 am

Brown Act Expert stated: 1999

"Fox, being the nephew of Half Moon Bay's "godmother", wouldn't even look at it, stating that he wouldn't prosecute a Brown Act violation. So there you have it."

At least he kept his word, James P. Fox has never prosecuted a Brown Act Violation in his 28 years as San Mateo County's District Attorney. This might explain why he ran unopposed and was always endorsed by the majority of our political leaders.

James P. Fox has demonstrated his lack of respect for the law and the Taxpayers/Residents of San Mateo County by refusing to enforce Brown Act Violations.

This is why I have asked the DA both to prosecute Fergusson for her violation of the Brown Act but to also place her under judicial supervision to prevent further violations. Such judicial supervision could require immediate ethics training and that she provide contemporaneous copies of all her correspondence with her elected colleagues to the judge and that she refrain from any conversations with her colleagues except in properly agendized meetings.

Posted by reflection
a resident of another community
on Nov 26, 2012 at 2:31 pm

When then Vice Mayor John Boyle decided not to run in 2010, the stage was set for a bit of drama. The three veteran council members had all been mayor before, and even the two new council members were viable... according to Bill McClure.

In 2010, Fergusson was very opinionated about whom should be mayor, yet the policy she was waving around, says nothing about priority for the vice mayor or the number of votes. Now that Fergusson is off council, it will be interesting to find out her pick for the next mayor.

Posted by Kelly Fergusson
a resident of Menlo Park: The Willows
on May 21, 2014 at 4:43 pm

This thread recently came to my attention. Reading through this, I am reminded why few if any elected officials follow or participate in the Almanac Town Square  the breadth and degree of misinformation and vitriol is truly astonishing! The posts above are a case in point. In order to set the record straight, I offer the following:

In December 2010, I expressed my willingness to serve as the next Mayor to two of my council colleagues. The City Attorney subsequently determined that this violated the Brown Act. When it became apparent this situation was creating a distraction from critical City business and impending decisions facing the Council, I immediately resigned from the Mayor role and removed myself from re-vote consideration. The District Attorney investigated Brown Act allegations, and found "there was no violation of the criminal provisions of the Brown Act," and that the "cure and correction action of the City Council on December 14, 2010" was sufficient for the "civil remedy" provided for by the Brown Act. [District Attorney press release February 1, 2011]